CORE CRIMINAL LAW SUBJECTS: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct
(** post-2007 Amendment)

(h) Abusive Sexual Contact:

2012 (September Term)

United States v. Wilkins, 71 M.J. 410 (aggravated sexual assault, the charged offense in this case, requires that the accused “engage in a sexual act”; abusive sexual contact, the alleged LIO, piggybacks the definition of aggravated sexual assault: “Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact . . . .”;  because abusive sexual contact piggybacks the definition of aggravated sexual assault, all of the elements of the two offenses necessarily line up, except that aggravated sexual assault requires a “sexual act” whereas abusive sexual contact requires “sexual contact”; a “sexual act” is defined as: “(A) contact between the penis and the vulva . . .; or (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person”; “sexual contact” is defined as: “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person”; accordingly, abusive sexual contact is an LIO of aggravated sexual assault in some instances; for example, if an accused is charged with aggravated sexual assault by penetrating the genital opening of another, then any penetration of the genital opening would also require a touching of the genital opening).  

(in this case, appellant was charged with aggravated sexual assault by digitally penetrating the anus of a male victim; however, a sexual act is statutorily limited to genital openings, and the anus is not such an opening; courts are confined to the definitions formulated by Congress, and thus cannot construe “sexual act” to include the digital penetration of another’s anus; accordingly, there is plain and obvious error in this case because appellant was charged with a legal impossibility; the actions alleged could never constitute the offense of aggravated sexual assault; therefore, the specification was defective because it failed to allege the elements of aggravated sexual assault, and instructing on abusive sexual contact as an LIO was error). 

(although in this case appellant’s alleged actions could not have constituted the charged offense of aggravated sexual assault, his right to due process was not violated by his conviction for abusive sexual contact, which was erroneously instructed upon as a lesser included offense; appellant was not prejudiced by the substitution of the term “sexual act” for “sexual contact” because he was on notice of what he needed to defend against throughout his court-martial, given that the specification expressly stated that he placed his fingers or another object in the victim’s anus, and the defense’s strategy demonstrated that appellant understood that he was defending against all the elements of abusive sexual contact; this strategy would not have changed had the specification properly alleged “contact” instead of “act”; accordingly, appellant failed to demonstrate prejudice to a substantial right). 

2011 (September Term)

United States v. Ignacio, 71 M.J. 125 (if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt). 

(where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members). 

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